The Kenya Society for the Mentally Handicapped (KSMH) v. Attorney General, et al.

Petition 155A of 2011
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The petitioners, the Kenya Society for the Mentally Handicapped, brought suit against the Kenyan government for violating the rights of Kenyans with intellectual, mental and psychosocial disabilities. They brought suit against six respondents: the National Council for Persons with Disabilities for not implementing measures that address the needs of people with mental disabilities, formulate policies to protect people with mental disabilities from discrimination, and intentionally failing to fulfill its mandate; the Minister for Education for failing to develop an education policy for people with mental disabilities; the Minister for Health for not developing adequate mental health care in public health institutions; the Minister for Medical Services for providing insufficient resources to mental health care; and the Minister for Gender, Children  & Social Development for improper usage of funds intended for persons with mental disabilities.

The Court noted a contemporaneously released report by the national human rights commission regarding the “systematic neglect of mental health systems in Kenya.”

The Court rejected the petition. The Court stated that the petitioner has an obligation to set out in their case sufficient detail of violations that respondents have notice on how to defend themselves. The Court found that the petition only sets out general grievances and does not list specific policies that the Court could examine. Likewise, the critique of the budgetary allocation was not articulated and the Court could not examine the constitutionality of the amount provided as no budgetary context.

“At the core of the petitioner’s claims are economic and social rights protected under Article 43. Budgets and budgetary allocation are a key consideration in the enforcement of these rights and Article 20(5) sets out principles applicable when determining whether the State has met its obligations in terms of providing resources. It is clear, that apart from the figure cited, the petitioner has made no attempt to provide the context of the budget to enable the Court make the necessary assessments and determination. Counsel for the petitioner, during submissions, admitted that there was no averment in the petition or in the pleadings regarding the total budgetary allocation to the mental health sector. When examining whether budgetary allocation is adequate or is consistent with the State’s constitutional obligation, the Court cannot rely on one figure put out there for consideration. There must be more and in the absence of such evidence, I think it is unnecessary to proceed with such an inquiry.” (Para. 17)

“The Court’s purpose is not to prescribe certain policies but to ensure that policies followed by the State meet constitutional standards and that the State meets its responsibilities to take measures to observe, respect, promote, protect and fulfil fundamental rights and freedoms and [sic] a party who comes before the Court.” (Para. 18)

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